Lawyers for a Tennessee man who was sentenced to death are asking a judge to disqualify Shelby County DA Amy Weirich’s entire office from involvement in his retrial.

Weirich appeared in court Friday to address the case, which was continued until next week so the defendant, Andrew Thomas, can be brought to Shelby County from Riverbend Maximum Security Institution in Nashville.

The district attorney general is personally handling the case of Thomas, who won the new proceeding after a ruling last year by the Sixth Circuit Court of Appeals that blasted the prosecutor’s failure to disclose that a witness who testified against Thomas had been paid.

Weirich has maintained she did not know the witness, Thomas’ former wife Angela Jackson, had been previously paid by the federal government. According to court records, the payment was made after the end of a related federal trial held prior to the state death penalty case that Weirich prosecuted with now-Judge Jennifer Nichols.

In court documents, the lawyers for Thomas cited Weirich’s inclusion last year by a Harvard Law School group in a study of prosecutorial misconduct and what a local news outlet called a “meltdown” on her Twitter page over a New York Times article about problems in her prosecution of another defendant, Noura Jackson. The lawyers point to these matters as part of the reason they allege Weirich has too much of a personal and political interest in redeeming herself to the public through Thomas' prosecution.

“To avoid the actual conflict created by District Attorney General Weirich’s personal and political interest in Thomas’s case and to avoid the appearance of impropriety created by her involvement, the Court must disqualify the entire Shelby County District Attorney General’s Office from any retrial of Thomas’ case,” attorneys Robert Hutton, Kevin Wallace, Elizabeth Cate and Mollie Richardson argue.

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Robert Hutton, attorney for Tennessee death row inmate Andrew Thomas, has filed a motion seeking the removal of Shelby County District Attorney General Amy Weirich and her office from prosecuting his retrial.(Photo: Mark Weber/The Commercial Appeal)

In response, Weirich said in court documents that there is no appearance of impropriety requiring her disqualification and that Thomas has also failed to demonstrate a conflict requiring the removal of her and her office.

“The State submits the facts presented in defendant’s petition are cherry picked and do not give an accurate portrayal of the events surrounding the reversal of Thomas’ state court conviction,” Weirich said.

Additionally, Weirich argues that all public officials face public criticism and commentary: “Such is the reality of serving as a public official.”

Victim in case was shot during robbery

There were two trials of Thomas, one in federal and one in state court in the case of the robbery and murder of James Day.

Day, an armored truck driver picking up deposits from a Memphis Walgreens, was shot and paralyzed in 1997. Thomas was convicted and given a life sentence in federal court.

After the trial ended, Scott Sanders, who worked on the multi-agency Safe Streets Task Force, authorized a payment to Angela Jackson, a witness in the case.

Federal prosecutor Tony Arvin said, according to court documents, that Jackson was not informed beforehand that she would be receiving the payment.

After Day died in 1999 following complications from the shooting, Thomas was prosecuted for murder.

Arvin said nothing in the materials he provided to the Shelby County DA’s office mentioned the $750 payment to Jackson. He said he didn’t remember it until it came up at a hearing in 2011 where Thomas was asking to vacate his conviction.

In the Sixth Circuit, judges keyed in on part of the state death penalty trial in which Weirich questioned Jackson, who denied being paid:

"Have you collected one red cent for this?" Weirich asked, according to a trial transcript.

"No, ma'am," Jackson replied. "I have not."

The judges said in the ruling that the prosecutor's failure to disclose the evidence was "egregious."

"This is all made even worse by the fact that the prosecutor failed to correct the record even after Jackson squarely denied receiving any 'reward' money in exchange for her testimony against Thomas," the court said.

Researchers with Harvard Law School's Fair Punishment Project ranked the Shelby County DA's office highest in Tennessee for misconduct and reversals and included the Thomas case as an example.

Problems with other cases

Special prosecutors have been brought in during other Shelby County cases involving allegations of problematic conduct by prosecutors. In 2016, special prosecutors handled the retrial of Michael Rimmer. He was subsequently convicted and sentenced to death again for the killing of Ricci Ellsworth, who disappeared in 1997.

In that case, Weirich announced in 2014 she would ask for the appointment of a special prosecutor to handle Rimmer’s retrial.

A judge had found Rimmer’s defense counsel failed to effectively investigate the capital case and that the Shelby County prosecutor, Thomas Henderson, “purposefully misled” Rimmer’s counsel about evidence. Henderson, who later retired, pleaded guilty to professional rule violations and accepted a public censure from the state Supreme Court. While special prosecutors handled the retrial, the Shelby County office’s chief investigator and a victim-witness coordinator were allowed to help.

In 2015, Weirich recused her office from the retrial of Noura Jackson in the death of Jackson’s mother, Jennifer Jackson.

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Noura Jackson reads a statement about the prosecutors in her murder trial on Sept. 15, 2016.
Katie Fretland/The Commercial Appeal

The Board of Professional Responsibility of the Supreme Court of Tennessee charged that during Jackson’s trial, Weirich improperly commented on her right to remain silent and that she failed to review a witness statement that wasn’t turned over to Jackson’s lawyers until after the trial.

Weirich accepted a private reprimand and a panel of lawyers cleared a prosecutor who assisted on the case, Steve Jones.

“As I have said from the beginning, an error was made,” Weirich said last year. “Human errors are going to be made. We touch over 200,000 cases every year.”

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Shelby County District Attorney General Amy Weirich press conference to respond to her conduct in the Noura Jackson case.
Nikki Boertman/The Commercial Appeal

Noura Jackson eventually entered an Alford plea on a reduced charge of voluntary manslaughter and was later released. She has maintained that she’s innocent.

Judges recuse themselves from case

Multiple Shelby County Criminal Court judges have recused themselves from hearing proceedings in the Thomas case, including Nichols, who prosecuted Thomas with Weirich and was recently appointed to the bench by Gov. Bill Haslam with Weirich as a reference.

State prosecutor Jennifer Nichols walks back to her seat after questioning a witness during the murder trial in the death of Holly Bobo, Monday, September 11, in Savannah. Zach Adams was convicted.(Photo: KENNETH CUMMINGS/The Jackson Sun)

Judge Lee Coffee, who was employed as a prosecutor in the Shelby County DA’s office when Thomas was prosecuted, recused himself, citing an advisory opinion by the chair of the judicial ethics committee.

“(The) Court finds that disqualification is mandatory to avoid any inferences or appearances of a conflict,” Coffee wrote. “Since the petitioner alleges prosecutorial misconduct and bad faith as a ground that resulted in the order for a retrial, this Court finds that voluntary recusal is appropriate and mandatory.”

Judge James Lammey recused himself citing the reasons in Coffee’s order and said the case should also not be assigned to Judge Bobby Carter or Judge John Campbell for the same reasons.

The case is currently in the court of Shelby County Criminal Court Judge Mark Ward.